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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Nguyen & Anor, R. v [2016] EWCA Crim B2 (08 December 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/B2.html Cite as: [2016] EWCA Crim B2

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8th December 2016

MR JUSTICE MALES: This is a renewed application for leave to appeal against sentence by two applicants, Quan Nguyen, now aged 34, and Mark Daley, now aged 38. They were both involved in an extensive conspiracy for the supply of Class B drugs, namely cannabis. Nguyen received a sentence, after trial, of 9 years' imprisonment, while Daley, who pleaded guilty, was sentenced to 3 years and 8 months. Various other co-accused, all of whom pleaded guilty, received sentences of varying lengths. It is unnecessary to set out in this judgment the facts of the conspiracy, which involved an organised group, acting over a period of 9 months, the leader of which was a man called Josling. The detailed facts are set out in the Criminal Appeal Office summary. Nguyen was one of the principal conspirators together with Josling.

The grounds of appeal on behalf of Nguyen are first, the sentence of 9 years imposed by the judge was too high, having regard to the guidelines. Second and third, that the sentences were vitiated by disparity, first, by reference to the sentence imposed on Josling and second, by reference to the sentence imposed on another of the conspirators, a man called Ta Tran.

So far as the application by Daley is concerned, it is another disparity point, namely that although the judge did distinguish between Daley's role and the role of another conspirator called Wallman, he did not do so to a sufficient extent.

The role played by Nguyen was to coordinate the collection of cannabis for the gang in what was, as we have said, an organised and extensive conspiracy and to participate in the receipt of the proceeds. He was the head of the London end of the suppliers of drugs to the gang operating in Milton Keynes. He had subordinates working under him. He was in extensive contact with Josling, both by telephone and in person. He had a number of 'dirty' phones and he lived in a flat with a specially reinforced door and internal CCTV system.

It is accepted that the judge was entitled to conclude that he was to be sentenced in accordance with the category 1 leading role guidelines, which provide for a starting point of 8 years' imprisonment and a range of 7 to 10 years. Having fought the case he had no credit for plea available, and the modest reduction in sentences given to other defendants who did plead guilty in addition to their credit for their plea, to take account of the delay in being sentenced while Nguyen was tried, did not apply to him.

The judge applied an uplift to the starting point of 8 years provided in the guidelines, which reflected his view of the quantity of the cannabis involved in the conspiracy. Category 1 of the guidelines, which of course are applicable to the substantive offence, are based on a quantity of 200 kilograms. The judge's view was that there were at least 17 deliveries and possibly as many as 40, with one example of a delivery having consisted of 7 kilograms. Moreover, this was a conspiracy for which he was sentencing, not the substantive offence.

In our judgment, his approach in applying that uplift cannot be faulted. It must have resulted in a figure, something in excess of the 9 year sentence which he imposed, as Nguyen was of previous good character, which was a mitigating factor entitled at any rate to some weight. We reject therefore the first ground of appeal that the sentence imposed was in its own terms too high, and we turn to the disparity points which form grounds 2 and 3 of Nguyen's application.

The starting point before credit for plea which the judge identified in the case of Josling, the leader of the conspiracy, was nine-and-a-half years. The judge then applied full credit for plea, which reduced the sentence by one-third and then applied a further modest reduction to take account of the delay. The sentence imposed was one of 6 years' imprisonment on Josling.

It is expressly accepted, in the advice by trial counsel, that the judge was entitled to consider the roles of Josling and Nguyen as broadly equal and Ms Sheikh, who appeared for the applicant today, accepted that that was the position.

Two factors are relied up as significantly aggravating Josling's case in comparison with the applicant's. The first is that the applicant had no previous convictions while Josling did have two relevant convictions. However, one of these was very old, dating from 1995, the other, although more recent, was still fairly old, dating from 2004. The judge was entitled, in our judgment, to take the view that these were of little or no real weight so far as any comparison with Nguyen was concerned.

The second point of disparity relied upon is that Josling played a role in recruiting other participants to the conspiracy. The judge referred to this in the sentencing remarks, saying that Josling bore "a heavy responsibility for involving others".

The fact remains however that the judge did apply a different and higher starting point for Josling, namely nine-and-a-half years rather than the nine years applied to the applicant. In our judgment, there is no justification for interfering with the judge's view of the appropriate respective sentences if each had fought this case at trial. In the result Josling's lighter sentence is because he obtained full credit for his plea and the judge applied a further small reduction because of the delay. That is not a matter which the applicant is entitled to complain about.

Ta Tran was also convicted after trial. He was sentenced to 5 years' imprisonment by a different judge. The sentence was on the basis that although he was a major provider of cannabis to the conspiracy, he was not involved on many of the occasions when cannabis was supplied and was only in contact with the conspiracy on eight occasions. Like the applicant he had no previous convictions. There was a significant difference in terms of their involvement between Nguyen and Ta Tran. Indeed in sentencing Nguyen, His Honour Judge Sheridan stated expressly that "the roles between Nguyen and Tran are completely different in terms of quantities supplied." Clearly therefore he had this point very much in mind. We see no reason to suppose that his assessment was incorrect. We would therefore refuse leave in the case of Nguyen.

Daley was sentenced to 3 years 8 months, having pleaded guilty, a sentence which represents 6 years after trial, with full credit for plea and a reduction of 4 months to take account of delay. His role was to provide drugs which had already been taken to the Milton Keynes area, collecting them from Josling and another man called Chivers and supplying them to local dealers. He performed this function on four occasions in September and October 2014.

The judge determined that his specific role in the conspiracy was limited, in particular limited to that period, but that he was aware of the overall scale of the offending in which he took part. He had seven previous drug related convictions but the judge put those to one side. Again, the judge expressly compared his role with that of Wallman, saying that he played a similar but more limited role. The starting point for Wallman was 7 years described as "the high end of significant role".

Again it is accepted that the judge was entitled to sentence Daley for a category 1 "significant role" offence, based on the quantities involved and the extent of his involvement. It is suggested however that the sentence in his case should have been significantly less than that of Wallman, for whom the starting point was 7 years because of Wallman's involvement for a greater period (five-and-a-half months). It is said that although there was a differential it was not enough.

We do not agree. It may be that the judge could have started with a lesser sentence than 6 years for Daley to reflect a greater distinction between him and Wallman but the distinction which he did decide to make is not one with which we are prepared to disagree. Any interference by this court with this sentence would not make any significant difference after applying credit for plea and a modest reduction for delay. The sentence imposed cannot be regarded as manifestly excessive for Daley's involvement in a substantial and wide-ranging conspiracy, even for the limited period involved. We would therefore refuse leave in the case of Daley also.

We commend both counsel for the succinctness and clarity of their submissions.